New NC Supreme Court filing offers reminder of Cohen’s role in Ace Speedway shutdown

Ace Speedway in Alamance County. Source:

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  • A new brief filed at the N.C. Supreme Court highlights Mandy Cohen's role in the challenged shutdown of an Alamance County racetrack during the COVID-19 pandemic.
  • Cohen was secretary of the N.C. Department of Health and Human Services in June 2020. She is now reported to be President Biden's choice to lead the Centers for Disease Control and Prevention.
  • The N.C. Supreme Court is expected to hear the case involving the racetrack shutdown this year. Cohen's successor as DHHS secretary wants the court to reverse a unanimous Appeals Court ruling favoring racetrack owners.

A day after Mandy Cohen’s name surfaced as the likely nominee to lead a top federal health agency, a new brief filed at the N.C. Supreme Court discusses her role in shutting down an Alamance County racetrack during the COVID-19 pandemic.

Owners of Ace Speedway filed the brief Friday in a case the state’s highest court is expected to review this year.

The Washington Post reported Thursday that Cohen is President Biden’s choice to serve as the next director of the Centers for Disease Control and Prevention.

Cohen was secretary of the N.C. Department of Health and Human Services in June 2020, when she ordered Ace Speedway closed indefinitely. Cohen went to court to secure a preliminary injunction enforcing her “order of abatement.” Cohen later dropped her legal complaint in September 2020. Racetrack owners continued to pursue their own counterclaims challenging Cohen’s shutdown.

The N.C. Court of Appeals ruled unanimously in August 2022 that racetrack owners could pursue their lawsuit. By that time, Cohen had left DHHS. The suit continued against current Secretary Kody Kinsley. The state Supreme Court agreed in March to hear Kinsley’s appeal of appellate judges’ ruling.

Though legal documents refer to the secretary as “him,” racetrack owners’ allegations actually target Cohen’s actions in 2020. Kinsley is the “plaintiff-appellant” at the state Supreme Court. The track owners are “defendants-appellees.”

The new brief recounts key details of the Ace Speedway shutdown. The track has a seating capacity of 5,000 spectators. Owners said they needed 1,000 paying customers at each race to break even. On May 23, 2020, the speedway conducted a race with 2,550 spectators. Two other races took place over the next two weeks — with attendance of 1,600 and 1,200 — before Cohen blocked further track operations.

Ace had consulted with the Alamance County health director, the local sheriff, and others before developing a plan to operate races while addressing concerns about COVID-19.

Yet an executive order from Gov. Roy Cooper had banned gatherings of more than 25 people in outdoor arenas. Cohen cited Cooper’s order in calling for Ace Speedway to close.

“After the issuance of this Executive Order, Defendant–Appellee, Jason Turner, made several critical comments to the press regarding the Governor’s Executive Order,” according to the new court filing. “These comments were made a part of the basis for the lawsuit by the Plaintiff–Appellant.”

“After these comments, the Governor became personally involved with shutting down ACE Speedway,” the latest court filing argued. “On May 30 while on the way to meet with these
Defendants–Appellees, a person from Gov. Cooper’s Office called Sheriff [Terry] Johnson. … Sheriff Johnson then met with these Defendants–Appellees at the request of Gov. Cooper and requested that they call off the race which was scheduled.”

“Sheriff Terry Johnson has been in law enforcement for 49 years, and has been sheriff of Alamance County for 19 years. In his 49 years of law enforcement, this is the first time he received a letter from the Governor requesting an investigation of a particular business,” wrote attorney Chuck Kitchen, representing track owners.

The brief named several other N.C. racetracks that conducted races during the same time period. None faced orders to close. “These Defendants were singled out for enforcement by the Governor and the Plaintiff due to the comments made by Defendant–Appellee, Jason Turner, to the media,” Kitchen argued.

Track owners challenge Cohen’s authority to shutter Ace Speedway. “The operation of ACE Speedway is neither a profession or skilled trade, nor does it constitute a business which constitutes social or economic evils,” Kitchen wrote. “The operation of ACE Speedway is an ordinary business which was operated on ACE’s own property and with ACE’s own means. Further, the business did not constitute a social or economic evil, nor was it the cause of any spread of Covid-19. The Secretary did not have the police power to order ACE Speedway closed.”

Even if Cohen had the power to close the speedway, that action was “arbitrary and unreasonable,” Kitchen argued.

Cohen did not have legal authority to enforce the governor’s executive order through a shutdown, he wrote. “The enforcement of this Order can only be properly accomplished by charging the violator with a misdemeanor; it cannot be enforced by issuing an order of abatement,” Kitchen explained. “Even though the Sheriff of Alamance County refused to bring criminal charges against ACE, there are numerous State law enforcement agencies which could have brought criminal charges.”

“This is not a case where the Secretary was prioritizing actions to be filed against several racetracks,” Kitchen argued. “ACE Speedway was the only racetrack to be sued for violating Executive Order 141. The reason for the Order of Abatement being issued was not due to an imminent health hazard, but was due to ACE criticizing the Governor’s action in the press. There was no imminent health hazard caused by ACE Speedway operating. No new cases of COVID-19 in Alamance County were linked to any races held at ACE Speedway..”

The state Supreme Court has not yet scheduled Kinsley v. Ace Speedway Racing for oral arguments.